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PETITIONER: GURJA BEDIA AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT01/08/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) KULDIP SINGH (J) SAWANT, P.B.

CITATION:  1990 SCR  (3) 572        1990 SCC  Supl.  521  JT 1990 (3)   317        1990 SCALE  (2)151

ACT:     Indian  Penal Code: ss. 34, 302 & 394--Identity  of  as- sailants--Testimony of P.W. suffering from serious  infirmi- ties casting reasonable doubt--Benefit of doubt to be  given to accused--Appellants acquitted.

HEADNOTE:     The  appellants  were convicted for offences  under  ss. 302,394  and 34 IPC. They were alleged to have  entered  the house  of the deceased at midnight and attacked him and  his wife,  PW 14, with sharp edged weapons. He  sustained  fatal injuries  and  died instantaneously. His wife  was  injured. Their two sons ran to the house of uncle PW-1, at a distance to inform him of the incident. They had not seen the assail- ants. By the time PW- 1 reached the scene the assailants had fled. He had been in the house the whole night and contacted all  the  concerned persons. In the FIR that  he  lodged  at about  10  a.m.  the next morning the  assailants  were  not named.     The prosecution case was that the appellants had commit- ted the crime on account of enmity. PW-14, who claimed to be an  eye witness, deposed that she had identified the  appel- lants.  She  also  stated that she  became  unconscious  and regained  consciousness  only the next day when  the  police arrived. PW-1 supported her version.     The  trial court accepted the testimony of PW-  14.  The High Court agreed with it.     In  this appeal by special leave, it was  contended  for the appellants that if PW-14 had identified the  assailants, it would have been possible for PW-1 to disclose the identi- ty  of the accused at the time the first information  report was  lodged,  and-that the prosecution  had  introduced  the theory  of  unconsciousness of PW-14 only in an  attempt  to explain away the lacuna- Allowing the appeal, the Court, HELD: 1. It is not safe to sustain the conviction when there is 573 reasonable  doubt regarding the participation of the  appel- lants in the crime. The benefit of doubt must necessarily go to them.

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   2.  The statement of PW-1 at the earliest point of  time belies the truth of what he had deposed before the court. He had  been  categoric in the FIR that he had  made  enquiries with the wife and sons of the deceased before proceeding  to the  police  station and asserted that five or  six  unknown persons  had  committed the crime. He had also  stated  that details  could  be furnished by the widow and  sons  of  the deceased. This affirmed that he could not gather any  useful information  regarding identity of the assailants.  All  the same, in cross examination he supported the version of PW-14 that she was lying unconscious when he reached the house  at night  and  she narrated the incident after  regaining  con- sciousness  when the police reached there. It clearly  indi- cates  that an attempt had been made by the  prosecution  to introduce  the case of unconsciousness of PW-14  to  explain the infirmity. [576F; G]     3. The circumstance that the identity of the  assailants was  unknown  until the police arrived at the  scene  showed that PW-14 or her children had not identified the assailants at the time of the occurrence. The courts below have  failed to appreciate her evidence in the correct perspective in the light of the clinching evidence. [576B]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  96 of 1979.     From the Judgment and Order dated 9.11.1977 of the Patna High Court in Criminal Appeal No. 332 of 1971. J .M. Khanna for the Appellants. D. Goburdhan for the Respondent. The Judgment of the Court was delivered by     FATHIMA  BEEVI, J. This appeal by special leave  is  di- rected against the judgment and order dated 9.11.1977 of the High Court of Patna whereby the conviction and sentences  of the  appellants for the offences under Sections 302,394  and 34, I .P.C., have been confirmed.     The  three appellants are brothers. The deceased,  Bigna Bedia, lived with his wife Sohagia Bedia and sons in village Karmatola.  The  incident happened on the  night  of  5/6.9. 1968. Bigna was sleeping 574 along  with  his  son Jhalku in the verandah  while  Sohagia  was sleeping along with Malku on cot. At about midnight, the  intrud- ers  entered the house by cutting the tatti and attacked  Sohagia and  her husband. Binga Bedia sustained fatal injuries  and  died instantaneously. Sohagia was injured. The intruders took away the utensils and two she-goats kept at one end of the verandah. Jiwan Bedia,  the brother of the deceased, on being informed by  Jhalku and  Lalku about the incident reached the house and after  making enquiries,  he lodged the first information report at the  police station  at  about 10.00 A.M in the next morning. The  crime  was registered  against  unidentified persons. In the course  of  the investigation  these  appellants were arrested and  were  finally charge-sheeted.     There had been ill-feeling between the appellants on the one hand and the deceased and his wife on the other,  though the appellants are the sons of the eider sister of  Sohagia. The prosecution case is that on account of enmity, the three appellants committed the crime. Sohagia claimed to be an eye witness.  According  to this witness, the  three  appellants were armed. Gurja had a tangi, Birja had a lathi and  Mukund had  a pharsa. On entering the house Gurja and  Birja  dealt blows on Sohagia with the weapons they had. She got  injured

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and  cried. On hearing the alarm, the deceased was  awakened from  sleep and when he was trying to get up, all the  three appellants left her and killed her husband. P.W. 14 asserted that Gurja had been flashing a torch and that she had  iden- tified  all the three appellants. She also stated  that  she became unconscious and regained consciousness only the  next day  when the police arrived at the scene. According to  the prosecution,  P.W.  14 is the only eye  witness.  Lalku  and Jhalku  who ran to the house of P.W 1 had not seen  the  as- sailants. The trial court accepted the testimony of P.W.  14 corroborated by the medical evidence and other circumstances as the basis for the conviction. The High Court agreed  with the trial court in holding that the prosecution has succeed- ed to bring home the guilt of all the appellants.     The  learned counsel for the appellants urged before  us that the testimony of P.W. 14 suffers from serious  infirmi- ties  casting  reasonable doubt as to the  identity  of  the assailants and the conviction is therefore unwarranted.  The circumstances  relied on by the learned counsel is  that  in the first information report the identity of the accused had not been revealed. It is argued that if P.W. 14 had  identi- fied the assailants, it would have been possible for P.W.  1 to  disclose  the identity of the accused at  the  time  the first  information report was lodged and  the  circumstances are such that the statements 575 of  P.W. 14 are inspired and the prosecution has  introduced the theory of unconsciousness of P.W. 14 only in an  attempt to  explain away the lacuna. To appreciate this  contention, it  is necessary to scrutinise the first information  report in  detail. P.W. 1, Jiwan Bedia, is the full brother of  the deceased. He has been residing in village Jawabera which  is at  a  distance of about half a  kilometer  from  Karmatola. Lalku  and  Jhalku reached his house at about  midnight  and raised  hulla that some thieves had entered their house  and killed  their father and were also killing their mother.  On hearing  this,  P.W. 1 got up and went to  village  Jawabera where he informed his gotias about the incident. Then taking Sawna Bedia, Jhopra Bedia and others along with him he  went to  the  house  of Bigna Bedia. There he did  not  find  any thief.  On  entering the house, he found Bigna  Bedia  lying dead  with bleeding injuries on his head and legs. The  wife of Bigna was also injured with a cut injury on her face.  He learnt there from the wife and both the sons of Bigna that 5 or 6 persons had entered the house by cutting the tatti  and had  inflicted  injuries on Bigna and his wife  with  tangi, bhujali etc. and they also removed the lock and peg and took away utensils and two she-goats from the house. P.W. 1  then went to the villagers of Karmatola and told them about  this incident.  P.W. 1 also contacted the Mukhia of  the  village Hindebilli  and others before going to the  police  station. P.W.  1  in narrating the incident in the Fard  byan  stated that he learnt from the wife and sons of the deceased that 5 or  6 persons had entered the house and committed the  crime and details could be furnished by the widow and the sons  of the deceased.     P.W.  1,  no doubt, in cross-examination  supported  the version  of P.W. 14 that Sohagia was lying unconscious  when he reached the house at night and she narrated the  incident after  regaining consciousness the next day when the  police reached there.     The  statement of P.W. 1 at the earliest point  of  time belies the truth of what he has deposed before the court. He had been categoric that he made enquiries with the wife  and sons of the deceased before proceeding to the police station

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and  asserted that 5 or 6 unknown persons had committed  the crime. It clearly indicates that an attempt had been made by the prosecution to introduce the case of unconsciousness  of P.W. 14 to explain the infirmity. It may be that P.W. 14  on account  of  the shock could not have been so  eloquent  and depressed, but P.W. 1 had been in the house the whole  night and he had contacted all the concerned persons and also made enquiries.  The statement in Ex. p. 6 that details would  be given  by  the wife and sons who were present in  the  house also affirms that he could not gather any 576 useful information regarding the identity of the assailants. The  courts below have failed to appreciate the evidence  of P.W.  14  in  the correct perspective in the  light  of  the clinching  evidence in the case. The circumstances that  the identity  of  the assailants was unknown  until  the  police arrived at the scene is clear indication that P.W. 14 or her children  had not identified the assailants at the  time  of the  occurrence. It could be that on account of  enmity  and ill-will their suspicion has turned against these appellants and  inspired by that suspicion, the investigation had  been misdirected.     We  do  not therefore consider it safe  to  sustain  the conviction  when  there is reasonable  doubt  regarding  the participation  of the appellants. The benefit of doubt  must necessarily go to the appellants.     In  the result, the appeal is allowed.  The  convictions and  sentences  are set aside. The bail  bonds  shall  stand canceled. P.S.S.                                    Appeal allowed. 577